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28 July 2017

The details of Brexit are largely dull, not difficult

by Lee Rotherham

Originally published by CapX.

The core problem with Brexit – or rather the public debate around it – is a mirror of the problem generated for the nation state by the fundamentals of the EU itself. It is not the breadth of the topic. It is not the depth of the issues. It is a combination of both.

EU governance has come to permeate the way our society operates and our Government runs. It’s like if you’re trying to remove and replace the wiring in your home – as you explore the complexities, all manner of unexpected architectural difficulties are revealed in the process.

That is not to say that Brexit is a bad idea. Quite the contrary: it means that we have been particularly prudent to leave the EU at a time of our own choosing, before another 10 or 20 years of further economic and administrative integration have compounded our difficulties. Pity the country forced out by a eurozone crisis, or by the attempted grab at its resources that would follow.

But it does mean that we should bear in mind the limits of perception. Like the human eye, the focus of the media can be narrow or broad; it cannot capture both.

That, in turn, is exacerbated by inherent difficulties that Brexit presents for the professional commentariat. High-turn-around journalists who are not experts in the subject matter are drawn with the tidal flow, with scant time to delve into legal or technical arcana and check whether a “fact” or “controversy” is really such. And the few who are deep-dive experts are constrained by the willingness of their readers to put on their rubber gloves for a topic that is potentially dishwater-dull.

As I suggested in a briefing paper intended for EU diplomats based in the UK, true experts are then faced with the “Carl Sagan problem”. By popularising a complex field, they risk over-simplifying key elements – which may in turn plant the seeds of new myths and errors.

That’s before we even get into the question of professional bias, and the extent to which EU funding has quietly (and perniciously) skewed the intellectual debate though the Jean Monnet programme and a mass of general funding.

It is in this context that we need to understand a new paper we have produced at The Red Cell. The Tangled Web looks at the Euro-quangocracy that underpins the way the EU works.

These institutions tend to have been set up for three key reasons. The first is to supply a specific function in support of policy-making and interoperability in an area where the EU has a legal lead. The second is as an act of virtue-signalling. The third is out of ambition, in areas where the EU hopes to expand its competence remit in the long term.

As the research shows, this is not an area involving loose change, employing a couple of football-watching supernumeraries. We are talking about a collective budget of €10.1 billion, and over 15,000 staff.

Clearly, those working on Brexit will have to review these institutions, analysing which ones have some direct constitutional bearing for the UK; whether and how they will be replaced; and by whom. We will also have to work out which ones the UK will associate with in the future.

Our report divides the Euro-quangos into three categories. In 43 cases, the UK will likely simply leave the Agency, while keeping tabs on its website and sticking a Post-it with the phone number on the Civil Service fridge.

In eight instances, it is likely that a form of “strategic association” will be needed, involving a formal liaison partnership short of being a full member – with all the political, legislative and financial obligations that would imply. These are mostly heavyweight bodies dealing with banking, defence, policing, aviation safety, medicines etc.

Only in two cases is there an obvious likelihood of the need for something engaging a much closer institutionalised working relationship – and in both those cases, it is the result of an experimental nuclear fusion reactor being physically sited on UK territory. You can’t load that on to the back of a four-tonner come Brexit Day.

But here the Carl Sagan problem kicks in. Someone looking at our report might conclude that the approach of wide horizon-scanning means no one has been using a telescope. Why are we only now hearing about all these agencies and authorities? Surely we can’t possibly have time to sort all this out by March 2019?

Here, as in so many other cases, this is simply not the case.

Delving deep into my box of nerdiness, here is a rough list of the sort of things that would need to be covered in a minimalist bilateral “strategic association” agreement:

• A definition of areas of cooperation (in doing so, noting areas covered by other international treaties);
• Designation of Points of Contact;
• Designation of Competent Authorities;
• Defining the extent, timeframe (whether 24/7 or working hours), transmission mechanisms, format, authorisation, justifications, and grading of source material, for exchange of information;
• Defining the limits of use, remedies, retention, deletion;
• Defining recourse and requirements on verifications, authorisation for reuse;
• Establishing provisions for data transmission and retention, confirmation of receipt, technical protection of data held, verifications, destruction of wrong data;
• Defining processes for recording data shared;
• Setting out limits and mechanisms for right of refusal (confines of agreement, law, national security, government interests, excessive costs, ongoing investigation) and possibility of offering partial or conditional compliance with the request;
• Agreeing rules on disclosure by either party;
• Confirming adherence to classification and caveats set at point of issue, within the context of operational flexibility, and agree mechanisms to review classification;
• Establishing processes for regular consultation;
• Allowing access to training and meetings of mutual interest;
• Agreeing to posting of liaison officers, and ascertain associated working modalities;
• Agreeing to cover working expenses and establish mechanism to cover extraordinary expenses.
• Introducing a Savings Clause (i.e. the agreement does not affect any other agreement on the exchange of information through another treaty);
• Setting up a Dispute Mechanism;
• Agreeing (limits to) Liabilities;
• Indicating methodology to amend the agreement.

I apologise for glazing eyes. But here’s the key point: this may all sound utterly obscure, but Whitehall has hundreds of people going over exactly these issues. Yet because they operate behind the walls of confidentiality, nobody can see that labour happening.

The problem for commentators – particularly commentators masochistically hunting for failures in Brexit planning – is that their vision is missing the peripheral. By pursuing half-understood flaps on what might happen if a particular clause is not covered, commentators are not adding to the sum of human knowledge, merely to its confusion. Recent bizarre assertions relating to the Euratom treaty or airlines agreements prove the point.

Across the Brexit negotiations, we need to be more sceptical as to the credibility of what are too often blurry snapshots. These all too often overlook either the underlying network of international treaties on which arrangements are based, or ignore the often relatively simple solutions that depend on a simple matter of consent for continuity between the two parties.

For all the talk and scaremongering about “hard Brexit”, that hobgoblin that will only appear in one of two circumstances. First, if civil servants do not do their jobs. Second, if the UK-EU relationship breaks down into an open trade war.

Although they do need to be mitigated against, both of those eventualities are extremely unlikely. In the meantime, flapping about absolute worst-case scenarios will do nothing to help.

As for wild talk and begging for Customs Union and Single Market membership at this midnight hour, that merely portrays the mindset of a Third Republic politician. France itself is two republics on from that.

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